Woolgrove and Secretary, Department of Education, Skills and Employment

Woolgrove and Secretary, Department of Education, Skills and Employment [2022] AATA 48 (13 January 2022)
Division:GENERAL DIVISION
File Number(s): 2020/3379
Re:Rosemary Woolgrove
APPLICANT

AndSecretary, Department of Education, Skills and Employment
RESPONDENT

DECISION
Tribunal:Member Cox
Date:13 January 2022
Place:Adelaide

The decision under review is affirmed.
..........................[Sgnd]..............................
Member Cox

CATCHWORDS
HIGHER EDUCATION SUPPORT – HECS-HELP debt – application for remission – Applicant claiming special circumstances – whether Applicant meets the test in subsection 36-21(1)(b) of the Higher Education Support Act 2003 (Cth) – decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth)
Legislation Act 2003 (Cth)
CASES
Beazley v Repatriation Commissioner [2015] FCAFC 165
Re Holbrook and Australian Postal Commission (1983) 5 ALN N 46
SECONDARY MATERIALS
Administrative Guidelines 2003
REASONS FOR DECISION
Member Cox
13 January 2022
BACKGROUND

On 15, 16 and 18 October 2018, the Applicant enrolled at the University of Southern Queensland (the “University”) in four nursing subjects for semester 1 of 2019.
On 18 February 2019, the Applicant left Queensland and travelled to Adelaide, arriving on 22 February 2019.
On 25 February 2019, semester 1 commenced.
The census date for Commonwealth assistance was 22 March 2019.
On 1 April 2019, the Applicant was issued with a Commonwealth Assistance Notice for the four subjects she had enrolled in for semester 1. The notice referred to the following subject numbers:
(a)NSC2500 – Pharmacology and Pathophysiology in Health;
(b)NUR2000 – Medications Management;
(c)NUR2101- Chronic Care Across Lifespan A; and
(d)NUR2102 – Chronic Care Across Lifespan B.
On 11 April 2019, the Applicant sent an email to the University stating she “would like to drop the course NSC2500 as I have felt for me that the course content is too much for me to cope with.” She also stated that she “was sick at the beginning of the year with influenza A and I moved interstate to spend time more time with my family through [sic] as both my mother and sister have been sick.”
On 18 April 2019, the Applicant dropped NSC2500 – Pharmacology and Pathophysiology in Health and NUR2000 – Medications Management.
On 24 June 2019, semester 1 ended.
On or about 1 November 2019, the Applicant applied to the University for remission of her HECS-HELP debt under subparagraph 36-20(1)(e)(ii) of the Higher Education Support Act 2003 (Cth) (the “Act”) for two of her units of study in semester 1 of 2019, being: NSC2500 - Pharmacology and Pathophysiology in Health, and NUR2000 - Medications Management.
On or about 19 November 2020, the University declined the application.
On or about 28 February 2020, the Applicant requested a review of that decision.
On or around 11 May 2020, the University affirmed the decision in respect of both units of study (this is the “review decision”).
On 1 June 2020, the Applicant applied to the Administrative Appeals Tribunal for a review of the review decision.
LEGISLATION AND ADMINISTRATIVE GUIDELINES
The relevant legislation is the Act and the Administrative Guidelines 2003 (the ‘Guidelines’) which is a legislative instrument within the meaning of section 8 of the Legislation Act 2003 (Cth). The Guidelines are subordinate legislation and the Tribunal must make a decision in accordance with them.
The Applicant applied for remission of her HECS-HELP debt pursuant to subparagraph
36-20(1)(e)(ii) of the Act claiming special circumstances pursuant to paragraph 36-20(1)(d) of the Act.
Subsections 36-21(1) and (2) of the Act provide that:
“(1) For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:
(a) are beyond the person’s control; and
(b) do not make their full impact on the person until on or after the census date for the unit of study; and
(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit
(2) The Administrative Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.”
The Guidelines provide the following direction in determining whether the Applicant’s circumstances were beyond her control, for the purposes of paragraph 36-21(1)(a) of the Act:
“3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1 A higher education provider will be satisfied that a person’s circumstances are beyond that persons control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
3.5.5 The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.”
The Guidelines provide the following direction in determining whether the Applicant’s circumstances changed after the census date, for the purpose of paragraph 36-21(1)(b) of the Act:
“3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:

(a) before the census date, but worsen after that day, or

(b) before the census date, but the full effect or magnitude does not become apparent until on or after that day, or

(c) on or after the census day.”
The Guidelines provide the following direction in determining whether the Applicant’s circumstances made it impractical to complete the requirements of the course, for the purpose of paragraph 36-21(1)(c) of the Act:
“3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS

3.15.1. A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:
(a) medical circumstances. For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or
(b) family/personal circumstances. For example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; or
(c) employment related circumstances. For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or
(d) course related circumstances. For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.
A person is unable to complete the requirements for a unit if the person cannot:
(a) undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or
(b) complete the required assessable work; or
(c) sit the required examinations; or complete any other course requirements because of their inability to meet (a), (b) and (c) above.”
APPLICANT’S CIRCUMSTANCES BEFORE CENSUS DATE
The Applicant gave evidence that she moved from Queensland to South Australia, arriving on 22 February 2019, which was three days before the first semester began. She said that the move was undertaken with the intention of spending more time with her family. On arrival, she discovered that her sister had suffered severe burns to her abdomen requiring daily dressing changes, and she had assisted her sister by taking her to appointments for dressing changes each day for a period between three to seven days. This period of assistance concluded before the census date and it can therefore not be considered as an unanticipated factor affecting her on or after the census date.
The Applicant also gave evidence that she gave support to her parents. Her 71-year-old father had medicine-controlled type 2 diabetes and was awaiting surgery for gastroesophageal reflux disease (GORD), and her 83-year-old mother had 3 surgeries for serious skin cancers. She gave no evidence that this support increased after the census date. It can therefore not be considered as an unanticipated factor affecting her on or after the census date.
That there was a workload attached to spending time with her family was not unanticipated by the Applicant when she moved from Queensland to Adelaide. She might argue that it was beyond her control and she had to respond to her family’s needs, but it was not beyond her control that she should attempt to meet those needs at the same time as undertaking a full-time study load.
The Respondent contended that the health circumstances of the Applicant’s parents and sister were not unusual, uncommon or abnormal for their stage of life. The Tribunal accepted that those contentions are valid.
The Applicant provided medical evidence in relation to three periods of illness before the start date of the first semester:
(a)On 4 February 2019, she was certified unfit for work. Dr Tam Thanh Thi Tran of Our Medical Home Loganholme noted that the Applicant was “[u]nwell for the last 3 days with influenza illness”;
(b)On 8 February 2019, she was certified unfit for work from 8 to 12 February 2019. The certificate said she had also provided information that she had not been fit for work from 5 February 2019. Dr Peer’s clinical notes said that on 8 February 2019 the Applicant “feels well” and “needs negative swab before she is allowed to work at the aged care”;
(c)The Applicant was swabbed on 11 February 2019, and Influenza A RNA was diagnosed and reported to the Chief Health Officer on 12 February 2019;
(d)On 13 February 2019, the Applicant was certified as unfit for work on that day and Dr David Copeland, of Our Medical Home Loganholme, made a clinical note that the Applicant “now feels well”.
On 7 March 2019, which was the eleventh day of the semester, the Applicant was examined by Dr Leow who diagnosed her with an ear infection. This was fifteen days before the census date. The Applicant had also reported having discomfort and an irregular heartbeat and had an ECG which showed a normal sinus rhythm.
On 10 April 2019, the Applicant attended the Medical HQ GP Family Practice at Ardrossan where Dr Mariusz Kocimski who provided a medical certificate verifying she was unfit for work from 9 April 2019 to 12 April 2019 and would be fit to return to work on Monday 15 April 2019.
The Applicant’s medical condition before the census date is relevant as a base for considering whether it significantly worsened on or after the census date of 22 March 2019.
APPLICANT’S MEDICAL CIRCUMSTANCES ON OR AFTER THE CENSUS DATE
On 25 May 2019, the Applicant attended GPaxis Munno Para and was reviewed by Dr Leow. His notes state that the Applicant had a “swollen ear” and was on “antibiotics”. Dr Leow provided her with a referral to Jones and Partners but the requested tests were not done until 25 June 2019 which was the day after the semester ended.
This is the last piece of evidence of a medical event prior to the end date for semester one. Medical evidence received after that date is only relevant to the extent that it can be related to changes in the Applicant’s medical condition on or after the census date and before the end date of the semester.
LATER MEDICAL EVIDENCE
On 25 June 2019, the Applicant attended Jones and Partners and had the scan as requested by Dr Leow, see paragraph 28. The scan was a helical non-contact study with fine sections through the posterior fossa/middle ear clefts. The following report was provided:
“On assessment of the brain parenchyma there is no space occupying lesion. There is no extra-axial collection. The ventricles are of normal size and grey/white matter differentiation is normal. Basal ganglia are intact.

On thin slice sections through the petrous temporal bones, the mastoid air cell complexes are completely normally pneumatised on both sides. The external auditory meatus are patent. The middle ear clefts are normal.”
On 26 July 2019, the Applicant had an ear swab.
On 25 September 2019, the Applicant attended Medical HQ GP Family Practice with left ear discharge and the external ear canal red. She was also concerned about a possible chest infection, noting she had a diagnosis (from 2004) of Chronic Obstructive Pulmonary Disease (COPD) and had previously smoked for 20 years. A swab was taken from her left ear for respiratory micro/culture.
On 25 November 2019, Dr Steven Lowe provided a medical certificate which said he had examined the Applicant for otitis externa on 7 March 2019 and 25 May 2019.
On 15 May 2020, Dr Jose Rivera of Realcare Medical Centre, Upper Mount Gravatt certified that “Ms Carrol has underlying Chronic Obstructive Airway Disease (COAD). This condition can predispose her to respiratory tract bacterial/viral (influenza) infection and can exacerbate her symptoms.”
On 3 August 2020, Dr M. S. Kamban Babu of the Medical HQ GP Family Practice provided a medical certificate that the Applicant had received treatment from 10 April 2019 to 3 August 2020 for recurrent ear infections, COPD, and shingles. The certificate also said “These conditions definitely has impacted her studies, kindly do the needful, which can help her to complete the course.”
On 5 August 2020 Dr Mariusz Kocimski of the Medical HQ at Maitland, provided a medical certificate that said:
“I consulted Ms Carroll for Otitis Externa secondary to bacterial infection cause in April 2019, while I was working for Medical HQ at Ardrossan SA.
I remember her case was quite severe clinically and necessitated consult and opinion o/phone with ENT Registrar at RAH Adelaide.
Patient was treated topically and systemically for her Otitis media.
As per patient’s request, I believe it could be fair to agree that it was possible that the severity of her otitis could impair her capacity to study.”
FAMILY CIRCUMSTANCES AFTER THE END OF THE SEMESTER
The Applicant provided a statutory declaration that included information that her daughter began having difficulties with her pregnancy in early July 2019, she was counselled following amniocentesis on 17 July 2019 and her baby was stillborn on 18 August 2019.
The Applicant’s brother died on 10 April 2020. Due to restrictions resulting from the Covid-19, pandemic she was only able to speak to him by video before he passed away.
The Applicant would have been severely traumatised by both of these tragedies and the Tribunal offers its sympathies.
However, as these events occurred after the end date for semester 1, they cannot be considered as factors affecting the Applicant’s ability to complete the two courses in question.
COMPLETION OF OTHER COURSES DURING SEMESTER 1
The Applicant completed the following assessments after the 22 March 2019 census date:
(a) On 2 April 2019, the Applicant obtained 20 out of 20 for an online medication calculation quiz for unit NUR2000 Medications Management, one of the courses for which she is seeking remission of fees[1];
(b) On 3 April 2019, she submitted a supplementary reflective written assessment for unit NUR1299 Foundations of Nursing Practice which she had undertaken in semester 2 of 2018[2];
(c) On 29 April 2019, she submitted a written assessment and achieved a mark of 60.50 out of 70[3];
(d) On 3 June 2019, she completed an online activity and achieved a mark of 10 out of 10[4];
(e) On 7 June 2019, she completed ‘Lab Partic and Clinical Skills for NUR2102, receiving 22.50 out of 50[5];
(f) On 17 June 2019, she sat and passed an exam with 66 out of 100[6]; an
(g) On 18 June 2019, she sat and passed an exam with 68 out of 100[7].
[1] Exhibit F, p 88.
[2] Exhibit H, p 66.
[3] Exhibit F, p 180.
[4] Ibid.
[5] Exhibit G, p 5.
[6] Exhibit F, p 180.
[7] Ibid.
In Semester 1 of 2019, the Applicant achieved a distinction for NUR2101 Chronic Care Across Lifespan A and a pass for NUR2102 Chronic Care Across Lifespan B. She retook NUR2000 Medication Management in semester 2 of 2019, obtaining a high distinction. At the time of the hearing, which occurred in semester 1 of 2020, she was enrolled in NSC2500 Pharmacology and Pathophysiology in Health (T17, f123).
CONSIDERATION OF MEDICAL EVIDENCE
The Tribunal considered the medical evidence and came to the following conclusions.
The Applicant was diagnosed with COPD in 2004. This is a serious, chronic, progressive, and in many cases, an eventually fatal respiratory disease.
The Tribunal does not accept the Respondent’s contention that there is a question whether the Applicant was actually suffering from this disease in semester 1 of 2019. COPD is a clinical condition which would be expected to exacerbate the symptoms suffered as a result of contracting Influenza A.
The Applicant provided the following scientific evidence linking influenza A to middle ear infections:
“John T. Wren, Lance K. Blevins, Bing Pang, Lauren B. King, Antonia C. Perez, Kyle A. Murrah, Winston-Salem, Jennifer L. Reimche, Martha A. Alexander-Miller, and W. Edward, Swords; Influenza A Virus Alters Pneumococcal Nasal Colonisation and Middle Ear Infection Independently of Phase Variation, Infection and Immunity (a journal of the American Society of Microbiology) 2014 Nov, 82(11): 4802-4812; which amongst other things said:
Epidemiologic evidence strongly indicates a role for upper respiratory tract viruses, particularly influenza A virus (IAV), in the dissemination of S. pneumoniae from its nasopharyngeal niche to the middle ear (7-11).”
The medical evidence shows that the Applicant’s influenza A was diagnosed on 4 February 2019, alongside her ear infection diagnosis on 7 March 2019, both before the census date on 22 March 2019.
The Applicant gave evidence that she had not expected either condition to persist as long as they did. She said the ear infection worsened significantly after the census date.
The ear infection was still the subject of investigations in late September 2019.
There is limited medical evidence tracking the progress of the ear infection and none tracking the influenza or her general state of health after the census date. The Applicant said this was because the conditions were known and being treated to the extent that they could be. She also cited both the expense and the doctors’ reluctance to have influenza patients unnecessarily cross-infecting people in their waiting rooms, which are both reasonable assumptions for a person training to be a medical professional to make.
The Applicant’s more frequent visits to the doctor in February 2019 would relate to her requirements as a worker in an aged care facility to have medical certificates for absences from work and clearances from influenza infection to work.
The Applicant’s case that the ear infection worsened substantially after the census date is not helped by the fact that the one appointment she has provided evidence for between the census date and the last day of semester 1 resulted in the provision of a referral for a scan of her ear, which she did not have done until the day after the end of semester 1.
At the hearing, the Respondent conceded that it was open to the Tribunal to find that the Applicant’s ear infection had worsened after the census date. The only basis for doing that is the Applicant’s own verbal evidence that it had.

The Respondent’s additional submission referred to two authorities which found that for practical purposes there is an onus on a person who raises a specific fact for consideration, to prove the existence of that fact. In Re Holbrook and Australian Postal Commission[8], the Tribunal said, “he who asserts, or he who seeks a result must prove”. In Beazley v Repatriation Commissioner[9], the Full Court of the Federal Court of Australia observed that:
“In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, 4 ALD 139; 1A IPR 708, 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person ‘must satisfy’ the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest; see generally McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356-7 and 358; 6 ALD 6 at 9-10 and 11 (per Woodward J), at FCR 366, ALD 19 (per Northrop J) and at FCR 369; ALD 21 (per Jenkinson J); Ward v Western Australia (WAG6006 1995 and WAG6002 of 1996) (1996) 69 FCR 208 at 215-8; 136 ALR 557 at 565-8; and Evans (as executor for the estate of the late Evans) v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237; [2012] FCAFC 81 at [18] and the cases there cited.”[10]
[8] (1983) 5 ALN N 46.
[9] [2015] FCAFC 165.
[10] Ibid, at [68].
The Tribunal accepted these authorities and did not make a finding of fact that the Applicant’s ear infection worsened markedly after the census date.
The Tribunal considered the Applicant’s evidence that her influenza and ear infection unexpectedly continued long after the census date and the fatigue and pain she experienced made her unable to complete the two courses for which she sought remission of fees, and that they had therefore not had their full impact on her until after the census date.
In the absence of probative evidence that at least one of those conditions had worsened significantly after the census date, the Tribunal found that the Applicant had experienced the full impact of those conditions before the census date.
The Applicant’s expectation that the particular circumstances would not continue for as long as they did does not meet the test provided in paragraph 36-21(1)(b) of the Act, which refers to the actual full impact of the circumstances occurring after the census date. A person’s expectation about when those circumstances would cease is not a matter for consideration under the Act.
As the test set out in paragraph 36-21(1)(b) is not met, there cannot be a remission of fees for either NUR2000 Medication Management or NSC2500 Pharmacology and Pathophysiology in Health taken in semester 1 of 2019.
DECISION
The decision under review is affirmed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for the decision herein of Member Cox.

...........................[Sgnd]..............................
Legal Administrative Assistant

Dated: 13 January 2022

Date of hearing: 16 February 2021

Applicant:

Self-Represented

Advocate for the Respondent:
Ms Kristina Mihalic

HWL Ebsworth Lawyers

[2022] AATA 48

13 January 2022

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